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Google Deal Gives Publishers a Choice: Digitize or Not

SAN FRANCISCO — After seven years of litigation, Google and book publishers said on Thursday that they had reached a settlement to allow publishers to choose whether Google digitizes their books and journals.

It was a small step forward for Google’s plan to digitize every book and make them readable and searchable online, known as the Google Library Project, but it did not resolve the much bigger issue standing in Google’s way — litigation between Google and authors.

Though the settlement will not change much about the way that Google and publishers already partner, it is the newest signpost for defining copyright in the Internet age. It is also the latest evidence of the shift to e-books from print, and of Google’s efforts to compete with e-book rivals like Amazon.com. Digital books were a new and daunting prospect when the publishers first sued Google seven years ago, but they have now become commonplace.

“They had this lawsuit hanging around for years, and basically the publishers have all moved on,” said James Grimmelmann, a professor at New York Law School who has closely followed the case. “They are selling digitally now. That’s the future. This just memorializes the transition.”

The deal allows publishers to choose whether to allow Google to digitize their out-of-print books that are still under copyright protection. If Google does so, it will also provide them with a digital copy for their own use, perhaps to sell on their Web sites.

For books that it has digitized, Google allows people to read 20 percent of them online and purchase the entire books from the Google Play store, and it shares revenue with the publishers. The two parties did not disclose additional financial terms of the agreement, but the publishers had not asked for monetary damages.

Google has been offering publishers the opportunity to sell digital books for years, and digitizing new books has become routine for publishers. But under the settlement, publishers get the benefit of Google digitizing out-of-print books that they might not otherwise have turned into e-books. Meanwhile, Google can expand the library of e-books it sells to consumers.

Photo

A librarian in Ann Arbor, Mich., using a desktop machine to digitize a rare, centuries-old Bible.Credit
Carlos Osorio/Associated Press

“What’s really exciting about today’s settlement is the fact that Google will be getting access to books that have long been out of print, that are in copyright,” said Tom Turvey, director of strategic partnerships at Google. “It’s good for users who weren’t able to buy them before, and for publishers.”

The settlement does not answer the question at the heart of the litigation between Google and publishers and authors — whether Google is infringing copyright by digitizing books. It essentially allows both sides to agree to disagree, and gives publishers the right to keep their books out of Google’s reach.

“We’re very pleased because the settlement acknowledges the rights and interests of copyright holders and publishers, and whether they’re going to make their rights available,” said Tom Allen, chief executive of the Association of American Publishers. But the bigger case, between Google and the Authors Guild, remains tied up in court. An agreement between those two parties will determine whether Google can move forward with its broader, more ambitious digitizing plan.

“That’s the lawsuit with high stakes,” Mr. Grimmelmann said.

The settlement with the publishers could help Google in that litigation, he said. “Maybe the fact that the publishers don’t think this is a lawsuit worth pursuing will help Google slightly,” he said.

The Authors Guild, once a partner of the publishers against Google, said Thursday that the publishers’ settlement did not resolve any of its issues with Google’s book-scanning project.

“The publishers’ private settlement, whatever its terms, does not resolve the authors’ copyright infringement claims against Google,” Paul Aiken, executive director of the Authors Guild, said in a statement. “Google continues to profit from its use of millions of copyright-protected books without regard to authors’ rights, and our class-action lawsuit on behalf of U.S. authors continues.”

The settlement also did not address the difficult issue of so-called orphan works — those that are still under copyright but whose copyright holder or author cannot be found.

The groups representing authors and publishers sued Google in 2005, arguing that its digital book-scanning violated their copyrights. After years of litigation, they agreed to a $125 million settlement, but it was rejected last year by a federal judge, Denny Chin, who said it went too far and raised copyright, antitrust and other concerns.

After that, the publishers and authors, who had partnered when negotiating with Google, split. While the authors remain in court, the publishers reached the agreement with Google privately, so it is not subject to court approval.

Julie Bosman contributed reporting from New York.

A version of this article appears in print on October 5, 2012, on page B7 of the New York edition with the headline: Google Deal Gives Publishers a Choice: Digitize or Not. Order Reprints|Today's Paper|Subscribe